On Petition To Transfer from the Indiana Court of Appeals,
No. 49A02-0112-CR-879
_________________________________

June 3, 2004

Boehm, Justice.
The removal of a juror after deliberations have begun requires a record establishing
that the deliberations of the other jurors were not prejudiced by the removal
and that cause existed for removal without depriving the defendant of his right
to a jury trial. In this case a juror was removed without
establishing the need to do so, and without taking precautions to prevent the
rest of the jury from being improperly influenced. We remand this case
for a new trial.

Factual and Procedural Background

In 1985, fifteen-year-old T.P. was an eighth grader attending school in Indianapolis.
T.P. left her aunts home on April 7, Easter Sunday morning, saying she
would be back to go to church. She never returned, and a
week later her body was found floating in Fall Creek. An autopsy
determined that T.P. had drowned, and been in the water approximately forty-eight hours
or slightly longer. T.P. was naked, and bound by articles of clothing
around her ankles, neck and wrists. Both vaginal and rectal swabs revealed
spermatozoa.
No suspects emerged in 1985, and the investigation was dormant until 2000, when
the lead detective initiated a comparison of DNA samples from T.P.s body with
a statewide DNA database. A match was found with a sample from
Sterling Riggs, who had lived behind T.P.s aunt at the time of T.P.s
death. The State charged Riggs with murder, felony murder, Class A criminal
deviate conduct, and rape. The trial occurred in October 2001, and the
jury found the defendant guilty of murder and criminal deviate conduct, but not
guilty of rape and felony murder. Riggs was sentenced to consecutive sentences
of sixty-five years for murder and fifty years for criminal deviate conduct.
The Court of Appeals, in an unpublished memorandum decision, affirmed the convictions for
murder and criminal deviate conduct but reduced the latter to a Class B
felony. Riggs seeks transfer.
Riggs contends that: 1) the trial court erred when it replaced a
sitting juror, 2) the evidence is insufficient to support the murder conviction, 3)
the evidence is insufficient to support the criminal deviate conduct conviction, 4) the
convictions violate Indianas Double Jeopardy Clause, and 5) a sentence of sixty-five years
for a murder committed in 1985 is erroneous. We now grant transfer
and summarily affirm the Court of Appeals as to issues 2, 3, 4,
and 5. Ind. Appellate Rule 58(A)(2).

Replacing a Juror After Deliberations Begin

Approximately four hours after the jury began deliberating the trial court received a
note from the foreman. After consulting with counsel for both Riggs and
the State, the trial court engaged in the following dialogue with the foreman
outside the presence of the other jurors:
THE COURT: Okay. Ive received a note from you that indicates
We have a juror thats become belligerent, not willing to discuss the issues
onhand [sic] pertaining to the case. Do we have any recourse?
Is that your note to me?
FOREMAN: Yes, it is.
THE COURT: Okay. I have to be  I can only
ask you very limited questions, so Im going to be very careful at
this point and then Ill excuse you and you can go back to
the jury room. Would you be kind enough in our discussion not
to identify the person or their sex? Also would you be kind
enough not to disclose the state of the deliberations of the jury, what
the vote is, anything of that nature, or the leanings of this juror,
okay, sir?
FOREMAN: Yes, sir.
THE COURT: I appreciate it. Has this person, male or female,
participated in any deliberations at all?
FOREMAN: Marginally.
THE COURT: Marginally?
FOREMAN: Very marginally.
THE COURT: Okay. So my understanding is that we sent you
back to deliberate at 1:40 today and it is now 6:15. . .
FOREMAN: Uh-huh.
THE COURT: . . .when you say belligerent are there  is
there any physical conduct going on. . .
FOREMAN: No.
THE COURT: . . .in the jury room?
FOREMAN: No, it didnt get to that point.
THE COURT: Okay. Is it likely to get to that point
or. . .
FOREMAN: I felt that it was, thats. . .
THE COURT: Okay.
FOREMAN: . . .why I went and stood by the individual.
THE COURT: Okay. Do you think  and this is kind
of tentatively to help me understand  has this person  in your
opinion as the foreperson of the jury, has this person fairly participated in
the deliberations this far?
FOREMAN: Yes.
THE COURT: All right. So if this person has fairly participated
in deliberations is it just that the person has reached an opinion and
refuses now to budge from that?
FOREMAN: Thats correct.
After the judge excused the foreman, Riggss attorney requested that the court ask
the foreman if he believed further deliberations would yield a unanimous verdict.
If the answer was no, Riggs asked that the court declare a hung
jury and grant a mistrial. The State responded by asking for removal
of the juror who was the subject of the foremans concern. The
trial court recalled the foreman and the following occurred:
THE COURT: Have a seat again. Has  when was the
last time theres been any deliberations, its now six  you came in
at 6:15, did there come a point where deliberations stopped altogether?
FOREMAN: It pretty much stopped at five oclock.
THE COURT: At five oclock. And if  had they continued,
would there have been violence?
FOREMAN: I would think so. But beginning, thats why I wasnt
sure how to handle it.
THE COURT: Is there  is the conduct of this juror such
as to cause fear to other jurors?
FOREMAN: Yes. Fear of violence? Yeah.
THE COURT: All jurors have to be able to deliberate without fear
to their person and what Im concerned about, is there  is that
attitude or atmosphere in the jury room?
FOREMAN: I dont think any of the jurors are physically fearing, fearing
that juror, I mean most of the jurors are not willing to work
with that juror because of the way they feel. As well as
it goes the other way.
THE COURT: Pardon me?
FOREMAN: As well as the jurors not wanting to have . .
.
THE COURT: Not willing to work with the other . . .
FOREMAN: . . .work with anybody else in that room.
RIGGSS ATTORNEY: Im sorry, I didnt hear that answer.
FOREMAN: That particular juror is not willing to work with any of
the other jurors to talk out the various different charges.

The State then reiterated its request that the juror be replaced, and Riggs
responded that the record was not sufficiently clear to warrant the removal of
a juror. After a brief recess, the trial judge was handed a
note from the jury foreman asking for the court to . . .
please bring us the official statute regarding . . . criminal deviate conduct.
Thanks. The jury was informed that the official statute was contained
in the instructions and the court directed that deliberations continue. The State
had no problem with the trial courts response, but Riggss attorney expressed concern
that the jury had continued deliberating, without the juror who caused the problem.
We assume, but are not certain, that this was based on the
foremans reports that little progress had been made since 5:00 p.m., and the
assumption that the still unnamed juror, though present, was not engaged in the
deliberations.
Sometime between 6:15 and 7:30 the foreman sent the following note to the
trial court, The juror, Marcus Wallace, needs to see the Judge, ASAP.
The parties agreed that the court should interview Wallace and the following examination
took place:
THE COURT: I got a note from the jury foreman that says
you need to see me.
WALLACE: Yes, sir.
THE COURT: Okay. Why do you need to see me?
WALLACE: Ive been accusing [sic] of trying to defend the defendant by
the head juror. Not  Im not going to take that.
The head juror accused me of trying to defend the defendant and Im
not going to take that.
THE COURT: What do you mean youre not going to take that?
WALLACE: I dont have to because Im trying to give a fair
and impartial determination to this evidence and to this Court.
THE COURT: Well what do you intend to do about that?
WALLACE: I just asked to see the Judge. I want to
see what statute you want me to do. I asked to see
the Judge.
THE COURT: Okay. Thank you, sir, would you step outside the
door with the bailiff . . .
WALLACE: Yes, sir.
THE COURT: . . .for just a minute?

The State then reiterated its desire to have Wallace replaced by an alternate,
and Riggs disagreed, arguing the juror should continue and failure to do so
would be a violation of Riggss constitutional right to a unanimous jury verdict.
The trial court denied the defenses request to poll the jury as
to whether they could reach a verdict. The trial court then made
the following statement: First of all the Court did in fact observe
the demeanor of the juror and listened to his words to the point
that the Court is troubled if it sends this juror back to deliberate
. . . I am fearful of the events that would occur back
there. . . . The Court will also . . . allow
any party to examine the witnesses . . . including the baliff .
. . [that] delivered this note and appeared to be in somewhat of
a panic, that they were screaming at each other. At 7:30 p.m.
court reconvened and the judge dismissed the juror.
The trial court then reconvened the jury and told them it had released
Wallace from the panel. It then placed an alternate juror on the
jury. It then asked each juror, in the presence of the others,
if the removal of the juror would interfere with their ability to render
a fair and impartial verdict, to which each responded no. At 10:25
p.m. the jury reported it had reached a verdict. After Riggs unsuccessfully
moved for a mistrial, the jury reported its verdict of guilty as to
the murder and criminal deviate conduct charge, and not guilty on the felony
murder and rape charges.
Riggs contends that removing Wallace violated his constitutional right to an impartial jury,
and further argues that the record in this case does not support cause
to remove the juror. Riggs notes the lack of clarity as to
facts apparently relied on by the trial court. For example, the record
shows that deputies reported screaming in the jury room, but does not say
who screamed, what they were screaming, or to whom the screaming was directed.
Without these facts, Riggs contends the trial court did not have enough
information to warrant removal of the juror. Riggs also notes the foremans
ultimate conclusion that he did not believe other jurors were in fear of
Wallace.
In affirming the trial court, the Court of Appeals relied on Indiana Trial
Rule 47(B), which allows an alternate to replace jurors who prior to the
time the jury returns its verdict, become or are found to be disqualified
to perform their duties. The Court of Appeals reviewed the replacement of
Wallace under an abuse of discretion standard, and affirmed. We hold that
this record is not sufficient to support removal of a juror after deliberations
have begun.
A. Standard of Review
The State points to cases holding that trial courts have broad discretion in
determining whether to replace a juror with an alternate. Specifically, a number
of cases have given trial courts significant leeway under Indiana Trial Rule 47(B)
in determining whether to replace a juror with an alternate, and reverse only
for an abuse of discretion. See Jervis v. State, 679 N.E.2d 875,
881 (Ind. 1997). These cases deal with removal of a prospective juror
from a panel, or removal as a result of developments during the trial.
They do not address removal of a seated juror after deliberations have
begun based on conduct in the jury room. For example in Harris
v. State, 659 N.E.2d 522, 525 (Ind. 1995), after the first witness took
the stand a juror realized that the previous weekend the witnesss brother, who
worked at a service station and was also expected to testify, had driven
the juror home after servicing the jurors car. The two had exchanged
pleasantries but nothing related to the case. The trial courts ruling that
this incidental contact with an expected witness was not a ground to remove
the juror was within the trial courts discretion. Id. at 526.
The ground for removal did not present any substantiated basis to assume bias
on the part of the juror. The trial courts assessment of the
effect of such innocuous contact is entitled to significant deference because it is
based in large part on an assessment of the jurors ability to evaluate
the case on its merits. Although a trial court has broad discretion
to remove a juror before deliberations begin, removing a dissenting juror after that
point implicates the defendants right to a unanimous verdict and the defendants right
to a jury trial. Shotikare v. United States, 779 A.2d 335, 344
(D.C. 2001). Removal of a juror after deliberations have begun is ultimately
a matter requiring deference to the trial courts judgment, but it raises a
number of considerations not present before deliberations begin. As a result, it
demands a carefully developed record as to the grounds for removal and also
requires precautions to avoid inappropriate consequences from the removal.
B. Grounds for Removal after Deliberations Begin
Typical grounds for discharge of a juror are bias due to exposure to
publicity or contact with a party or witness. Wallace was not removed
for bias on these or other grounds. Rather, removal was based on
Wallaces actions in the course of deliberations. Once deliberations begin, discharge of
a juror is warranted only in the most extreme situations where it can
be shown that the removal of the juror is necessary for the integrity
of the process, does not prejudice the deliberations of the rest of the
panel, and does not impair the parties right to a trial by jury.
Indeed, some jurisdictions hold that a mistrial is required if discharge occurs
after deliberations begin. See State v. Adams, 727 A.2d 468, 471 (N.J.
Super. Ct. App. Div. 1999).
Here the actions leading to the dismissal arose from the deliberations, and the
record does not establish that Wallaces conduct was improperly influencing the rest of
the panel. A failure to agree, however unreasonable, is a ground for
mistrial, not removal of the obstacle to unanimity. See United States v.
Hernandez, 862 F.2d 17, 23 (2d Cir. 1988) (That a juror may not
be removed because he or she disagrees with the other jurors as to
the merits of a case requires no citation.). Removal of a juror
for misconduct requires more than a refusal to negotiate further. If there
were a showing of physical confrontation, or attempts to intimidate other jurors, then
removal may be permissible. Shotikare, 779 A.2d at 340, 345. But
this record does not establish these extreme modes of conduct.
It appears that the effect of the jurors dismissal may well have been
the avoidance of a hung jury. Of course trial judges do and
should seek to avoid a hung jury. We have often expressed the
view that a mistrial is an extreme remedy, warranted only if less severe
situations will not address the problem. West v. State, 758 N.E.2d 54,
55 (Ind. 2001). The trial judge may guide, encourage and instruct to
correct problems in jury deliberations. This policy in favor of assisting a
jury in reaching a verdict is also reflected in Jury Rule 28.
But it does not permit removal of a juror simply because the juror
does not agree.
The Court of Appeals dealt with similar facts in Gavin v. State, 671
N.E.2d 440 (Ind. Ct. App. 1996). In Gavin, the trial judge removed
a juror, even though the juror stated he based his beliefs on the
evidence and had made up his mind during the trial. Noting that
a trial court has broad discretion in replacing a juror, the Court of
Appeals held that this discretion is abused when a trial court removes an
impartial juror who has voted to acquit based upon the evidence presented at
trial. Id. at 447. Here the decision to remove Wallace was
based on the trial courts expressed concern for his effect on other members
of the jury. But the potential for violence is at best unclear.
What is clear is that the removal of the juror had the
effect of removing a pro-defense juror who, after the jury had deliberated, appeared
likely to create a hung jury. Importantly, as in Gavin, the juror
represented that he was trying to fulfill his role as a juror and
was making a decision based on the evidence. The foremans accounts of
Wallaces behavior amount to rudeness and intransigence but there is no record establishing
physical threats, intimidation or other conduct justifying removal. Accordingly, as in Gavin,
removal was improper.
C. Procedure for Removal after Deliberations Begin
The State contends that Riggs did not develop a record establishing prejudice to
him from the removal. We agree a thorough record is necessary to
establish grounds for removal. But it is not up to the parties
to show prejudice as to the outcome. Unjustified removal is structural error,
just as much as denial of the right to an impartial jury.
As the United States Supreme Court put it in Gray v. Mississippi, 481
U.S. 648, 668 (1987), some constitutional rights [are] so basic to a fair
trial that their infraction can never be treated as harmless error. The
right to an impartial adjudicator, be it judge or jury, is such a
right.
Moreover, to establish that the right is not infringed, the trial
court must establish the record to support removal of a deliberating juror, just
as a record is required to establish bias of a prospective juror.
Lindsey v. State, 260 Ind. 351, 357-59, 295 N.E.2d 819, 823-24 (1973).
Finally, it is important to note that removal of a deliberating juror raises
several issues not present in striking a juror in voir dire. Steps
may also be required in addition to establishing the grounds for removal.
The inquiry into the need to remove a juror may result in the
jurors continuing to serve on the panel, so the trial court must avoid
questioning that may affect the jurors judgment. See Commonwealth v. Connor, 467
N.E.2d 1340, 1346 (Mass. 1984). Moreover, the trial court must be careful
not to convey improper messages, either verbal or silent, to the other jurors,
who may infer that the juror was dismissed because of his or her
view of the case. Id. Here, the trial court judge asked
each juror, in the presence of the full jury, whether the removal of
the juror would in some way interfere with the jurors ability to reach
a fair and impartial verdict, to which each responded no. This general
inquiry did not focus sufficiently on the problem of the potential effect of
the removal on the jury. A juror might well conclude that the
removal of Wallace implied disagreement with Wallaces views on the merits of the
case. Removal should be accompanied by an instruction that removal in no
way reflected approval or disapproval of the views expressed by the juror.

Conclusion

In sum, the record does not establish grounds for replacement of Wallace.
There was no interview of Wallace regarding the alleged threats, and no interview
of other jurors to establish fear of violence. In addition, no steps
were taken to minimize the effect of removal on remaining jurors. For
both of these reasons the judgment of the trial court is vacated and
this case is remanded for a new trial.